Comparative and Foreign Law Commons^™

The International Investment Regime After The Global Crisis Of Neoliberalism: Rupture Or Continuity?, Nicolas Perrone

Indiana Journal of Global Legal Studies

This article aims to show that the tools being used to recalibrate the international investment regime, in particular proportionality and corporate social responsibility, constitute continuity rather than rupture with neoliberalism and neoliberal legality. Neoliberalism has been discredited, and few actors suggest a return to self-regulation after the 2008 global economic crisis. This call for regulation, however, finds international economic law scholarship divided between those who claim that standards of review and corporate social responsibility can solve the crisis of neoliberalism, and those who believe that the problem is more profound. In the case of the international investment regime, this article …

Taking To The Sea: The Modern Seasteading Movement In The Context Of Other Historical Intentional Communities, Megan Binder

Indiana Journal of Global Legal Studies

Though its mission may seem to belong to the realm of science fiction-establishing self-sufficient, floating cities on the high seas-the modern seasteading movement is simply the next iteration of mankind's long quest to establish more perfect societies. If they wish to accomplish their goals, seasteaders must be prepared to confront and overcome serious obstacles on technological, social, and legal fronts. Reviewing other historical examples of intentional communities offers a glimpse of the potential challenges that are common across all such movements and suggests that, to ensure long-term success, seasteaders may benefit longterm from pursuing international recognition of sovereignty for their …

Increasing Health Care Access In Yemen Through Community-Based Health Insurance, Matthew Fuss

Indiana Journal of Global Legal Studies

This Note addresses the implementation of health insurance reform in Yemen. As a result of a system of user fees and a lack of health insurance, the current regime poses serious barriers to health care access for Yemen's uninsured citizens. When the dust settles from the ongoing conflict with Houthi rebels, the time will be ripe for replacing Yemen's health financing system. In order to rebuild trust and curb abuse in the public health system, legal reforms are required to implement health insurance through decentralized decision-making and accountability measures. The Welfare Regime Framework accommodates these general reforms through policies that …

Will The Ebola Epidemic Serve To Make Reform Of The Broken Health Research And Development Framework Go Viral?, Jeremy Mcdonald

Indiana Journal of Global Legal Studies

The recent Ebola outbreak in West Africa has captured the public imagination as few other epidemics have, as its rapid spread and lethal effect demonstrated the devastating toll that infectious diseases can exact from a world unprepared to confront them. In light of the epidemic's tragic consequences, numerous experts have called for reform of the system of global health governance whose shortfalls allowed the epidemic to assume the horrifying dimensions it did. Among the many inadequacies that the outbreak uncovered is the insufficient amount of research into and development of treatments and vaccines for infectious diseases of poverty, among them …

"I'M Just Some Guy": Positing And Leveraging Legal Subjects In Consumer Contracts And The Global Market, Tal Kastner

Indiana Journal of Global Legal Studies

This article considers how legal frameworks shape the autonomous subject in a global economy. It makes salient the ways that different legal frameworks presume and enforce a particular subjectivity by positing certain behavioral expectations of various subjects. It does so through a focus on the underexplored rhetoric and implicit narratives of consumer contract law and transactional practice in the American and European regimes. By comparing the approach of the European Union to consumer contract, which posits the consumer as facing significant constraints on agency, to that in the United States, which elides functional limits of consumer knowledge and choice, this …

Citizens Of Sinking Islands: Early Victims Of Climate Change, Erin Halstead

Indiana Journal of Global Legal Studies

This Note discusses the effects of climate change that threaten Small Island Developing States (SIDS). Specifically, with increasing global greenhouse gas (GHG) emissions resulting in rising sea levels and higher frequency of extreme weather events, many citizens of SIDS are forced abandon their homelands, which are no longer livable. Although SIDS are some of the smallest contributors to GHG emissions, and therefore contribute the least to climate change, SIDS are some of the countries most heavily affected by the negative effects of climate change. The global community has an obligation to accommodate these displaced people, partially due to the significant …

Introduction: Imagining Post-Neoliberal Regulatory Subjectivities, Mika Viljanen Dr, Mikko Rajavuori, Tal Kastner

Indiana Journal of Global Legal Studies

To explore these tentative diagnoses and conceptualizations we called for papers engaging different aspects of law's subjectivity turn. A selection of papers that map the possible genealogies for the emergence of post-neoliberal law, address the implications of anthropomorphic corporate regulation, or analyze transformations in sovereign subjectivities is now published in this symposium issue. The papers take up and make salient an array of the big questions of our day.

While overlapping, the papers can be broadly divided into two categories. The first category consists of papers that explore the internal make-up of legal and regulatory subjectivities. Drawing on history, queer …

Contesting Austerity: The Potential And Pitfalls Of Socioeconomic Rights Discourse, Joe Wills, Ben Warwick

Indiana Journal of Global Legal Studies

This article argues that, while socioeconomic rights have the potential to contribute to the contestation of austerity measures and the reimagining of a "postneoliberal" order, there are a number of features of socioeconomic rights as currently constructed under international law that limit these possibilities. We identify these limitations as falling into two categories: "contingent" and "structural". Contingent limitations are shortcomings in the current constitution of socioeconomic rights law that undermine its effectiveness for challenging austerity measures. By contrast, the structural limitations of socioeconomic rights law are those that pertain to the more basic presuppositions and axioms that provide the foundations …

Unclaimed Money In Saudi Banks, Abdulrahman Almasnad

Maurer Theses and Dissertations

A law shall not violate its sources, especially if the sources are not subject to being overruled or ignored. However, one of the essential Islamic objectives is preserving the wealth “property.” This preservation requires protecting wealth from being acquired in illegitimate way, which will prevent the owners from controlling and enjoying their wealth. Islam protects true owners themselves from getting harmed or facing suffering caused by engaging in a transaction that involved their property. In making the law, Islamic scholars contend that any deliberate act that creates harm or makes someone suffer is “strictly prohibited” and must be rebuked. This …

Color Blocking: How The Harmonization Of Color Protection May Catalyze Color Depletion In Global Markets, Arsha Hasan

Indiana Journal of Global Legal Studies

The Qualitex decision in 1995 inspired trademark reformation and harmonization worldwide for the protection of color marks. While protecting color trademarks has not created issues of market entry in domestic markets, the growth in the number of transnational market participants and an increased utilization of non-traditional branding may catalyze color depletion in international trade. After exploring how current advertising expenditure requirements and distinctiveness requirements affect the registrability and protection of a color mark, this Note offers potential global reforms to help minimize hurdles for small scale transnational participants and the threat of international color depletion. Specifically, due to consumers' increasing …

Introduction: Global Human Rights Law And The Boundaries Of Statehood, Daniel Augenstein, Hans Lindahl

Indiana Journal of Global Legal Studies

The contributions collected in this Special Issue are the outcome of a colloquium on "Global Human Rights Law and the Boundaries of Statehood" held at the Stellenbosch Institute for Advanced Study (STIAS) in South Africa in March 2015. The colloquium is the first in a series of topics to be addressed within the STIAS research project, "Boundaries and Legal Authority in a Global Context," coordinated by Hans Lindahl and Louise du Toit. We would like to express our gratitude to STIAS for the funding and logistics of the colloquium. Our particular thanks are due to the director of STIAS, Hendrik …

Fractured Territories And Abstracted Terrains: Human Rights Governance Regimes Within And Beyond The State, Larry Catá Backer

Indiana Journal of Global Legal Studies

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics, and data. On the other hand, states were becoming less solid; the …

Statehood, Power, And The New Face Of Consent, Sheldon Leader

Indiana Journal of Global Legal Studies

Individuals and groups are often subjected to power, both public and private, by eliciting their consent. Debate usually focuses on whether or not that consent is freely given or is vitiated by imbalances of strength between the bargaining parties. This essay focuses on a different issue, one that is largely passed over in legal and moral analyses: how far does and should consent bind one to accepting in advance changes in the future? There are signs of a fundamental shift in answering this question-a shift that particularly concerns the control of power in the economy. Industrial democracies may be abandoning …

Global Insecurity: How Risk Theory Gave Rise To Global Police Militarization, Nicholas S. Bolduc

Indiana Journal of Global Legal Studies

Today, across the globe, police agencies are militarizing to confront modern-day threats. This gradual shift towards militarized policing stems from the concept of risk-risk has driven nations to amend their laws so that their law enforcement agencies may militarize to meet whatever risk they face. In the United States, the gradual shift towards militarized police occurred after the crippling of the Posse Comitatus Act in the face of the developing 'War on Drugs" However, America is a late development in this trend; the majority of the Western world militarized themselves through the concept of 'gendarmes", while the Chinese militarized their …

One Pillar: Legal Authority And A Social License To Operate In A Global Context, Hans Lindahl

Indiana Journal of Global Legal Studies

The claim that businesses have a social license to operate acquires concrete form in the second pillar of the U.N. Guiding Principles on Business and Human Rights (UNGPs) in the fundamental distinction between "compliance with all applicable laws" and "respect for human rights." The aim of this paper is to critically examine the presuppositions that undergird this distinction and to explain how and why moving beyond state-centered thinking about law, in response to violations of human rights by globally operating businesses, requires acknowledging that there is one pillar that embraces states and businesses: the legal obligation to comply with international …

Hydropower Development And Involuntary Displacement: Toward A Global Solution, Ali Vancleef

Indiana Journal of Global Legal Studies

This Note addresses the effects of hydropower development projects on displaced persons globally. This Note recognizes that the increasing global energy demand puts great strain on nations to provide their people with electricity, but it also suggests that sustainable energy development projects can be carried out in a way that is fair to the indigenous populations surrounding hydropower dams. The current global trend in involuntary displacement involves ignoring certain groups of affected persons while undercompensating directly displaced persons, leading to homelessness, social stigmatization, and extreme poverty for millions of people worldwide. Thus far, there has been no sufficient global solution …

The Behavioral Economic Case For Paternalistic Workplace Retirement Plans, Paul M. Secunda

Indiana Law Journal

Dependence on 401(k) retirement accounts continues to cause a massive retirement crisis in the United States by leaving most workers unprepared for retirement. The voluntary, inaccessible, employer-centered, expensive, and consumer-driven natures of these plans have combined to make retirement a type of corporate-inspired elder abuse in America.

Behavioral economics considers the utility of permitting individual choice in decision-making settings. Many, however, have been misled to believe that greater choice is always better. Yet, according to one prominent commentator, this consumer-driven paradigm will lead to 48% of current workers between the ages of fifty and sixty-four being poor when they reach …

To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein

Indiana Journal of Global Legal Studies

Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global …

External Forces, Internal Dynamics: Foreign Legal Actors And Their Impact On Domestic Affairs (Book Review), Jayanth K. Krishnan, Vitor M. Dias, Martin Hevia

Articles by Maurer Faculty

This Review examines the influence of foreign legal actors on jurisdictions that are not their own. Rachel Stern, a scholar of China, reflects on this point in her groundbreaking book published in 2013. In her penultimate chapter, Stern discusses how such foreign legal actors wield influence in China because of their presence on the ground. Building off of Stern's research, this Review proceeds to ask whether foreign legal actors can influence a domestic environment when that environment prohibits them from permanently working there. The analysis below will suggest so, arguing that the forces of globalization can enable foreign legal …

A World Elsewhere: Secession, Subsidiarity, And Self-Determination As European Values, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Decentering Human Rights From The International Order Of States: The Alignment And Interaction Of Transnational Policy Channels, Radu G. Mares

Indiana Journal of Global Legal Studies

This article accounts for recent developments in corporate social responsibility, international trade and investment law, international human rights law, development aid, and the laws of home states reaching extraterritorially in order to advance a regulatory perspective on commerce and human rights. While these developments are remarkable, the analysis documents the prevalence of softer strategies and a corresponding scarcity of coercive legalization strategies. The question, then, is how to reason about these recent developments and their genuine potential for human rights protection. The article proposes two elements-a root-cause orientation and the interaction of policy channels-as indispensable for a regulatory and systemic …

The Race To Safety: How Private Lawmaking And Voluntary-Standard Adoption Can Inspire A Global Regime That Strengthens And Harmonizes Product Safety Standards, Alexandra Muir

Indiana Journal of Global Legal Studies

Today's economy is dominated by global actors. Over the past few decades, transnational corporations have increased in number and importance while domestic corporations have turned to outsourcing to cut costs and increase efficiency. The globalized economy has caused a breakdown in both physical and legal boundaries, as products in international commerce move from one jurisdiction to another, often adhering to safety standards of an entirely different jurisdiction than the one in which they are sold. This breakdown raises concerns about product safety and illustrates the importance of creating a consistent products liability regime for the international market. At the same …

Domestic Violence In Saudi Arabia, Sahar Alhabdan

Maurer Theses and Dissertations

Family violence is a serious issue that affects women in Saudi Arabia. In response to cultural acceptance of violence between spouses in Saudi Arabia, the government issued its first law criminalizing domestic violence in 2013. The Protection from Abuse Act was proposed to improve protection for women and to punish the abusers, but several articles in the Act may reduce its effectiveness. Issuing laws prohibiting domestic violence cannot by itself protect women. Women should be protected under family law by preserving their rights to marry, divorce, obtain custody of children, and receive alimony. This dissertation will study the issue of …

The Reform Of The Corporate Duty Of Care In China -- From The Introspection Of Delaware And Taiwan, Jui-Chien Cheng

Maurer Theses and Dissertations

The concept of fiduciary duty, derived from common law, was introduced to the Company Law of People’s Republic of China in 2005. The fiduciary duty plays an extremely important role in common law, particularly in U.S. corporate law. For this reason, one might have expected dramatic consequences from its introduction to Chinese law. In reality, however, few fiduciary lawsuits have been brought to the courts of China since 2005. There are three main reasons for the rarity of due care lawsuits.

First, Chinese fiduciary law has neither clear content nor a practical enforcement. This is especially true of the body …

Tort Reform In Saudi Arabia: Obstacles And Solutions, Othman Talbi

Maurer Theses and Dissertations

Saudi Law is based on the broad guidelines of Sharia. This means that religion forms the basis of all Saudi law. Thus, because of the absence of a statutory law in Saudi Torts Law, Sharia’ principles take the place of the statutes. Consequently, when deciding tort cases judges need to consider these principles by interpreting them, and then apply them to each case individually. Furthermore, due to economic improvement and industrialization in Saudi Arabia, the nature and type of legal issues have changed. Therefore, complex cases have emerged for which it is very important to produce a reform resolving new …

International Trade V. International Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor Martins Dias

Maurer Theses and Dissertations

This work analyzes a distinctive characteristic of the globalizing Brazilian legal profession. Namely, intellectual property (IP) lawyers who once were leaders in opening the Brazilian economy and were key players in cross-border transactions are now losing ground to their peers with an expertise in international trade. The thesis of this article is that the manner in which Brazilian lawyers are being educated is in shambles. Generally speaking, Brazilian legal education has, overall, become degraded and provincial. Yet, Brazilian international trade lawyers, unlike Brazilian IP-lawyers, have overcome their deficient legal training by seeking legal education abroad. By traveling overseas, especially to …

Environment Chapter In Korea's Fta: Suggestions For Korea's Model Text, Jun Ha Kang

Maurer Theses and Dissertations

The aim of this dissertation is to delve into solutions for making Korea's FTA greener. The main question is whether and how Korea's FTA policy towards sustainable development may be sustainable. In answering this question, I critically reviewed the structure of the Environment Chapter of Korea’s FTA as well as its main contents. I also scrutinized the meaning of each provision and its significance in practice. Based on the analysis, I made suggestions on what strategies and contents are needed for Korea in its future FTA negotiations.

Firstly, Korea needs to initiate future FTA negotiations on the environment with its …

Enhancing The Parliament Capacity To Hold Government Accountable In Kurdistan Region, Zardasht Khalid Mohammed

Maurer Theses and Dissertations

The current structures and draft structures grant the party leaders and the Executive undue power over the Parliament in two ways. First, by virtue of constitutional design, the Executive and the party leader’s hegemony reduce the Parliament’s capacity to act as a check on the Executive. Second, there are contextual factors correlated with political will in using available accountability mechanisms which locate beyond the design factors and they have nexus with effectiveness of the Parliament. In the other words, the contextual factor such as electoral system, party discipline, and party formations impact on the will of the parliament in holding …

Everything That's New Is Old Again: The Impact Of Egypt's Political Culture On The Rule Of Law And Democracy, Hesham Genidy

Maurer Theses and Dissertations

No abstract provided.

The Problems Of Gender Inequality Raised By Unmarried Couples In Liberia, Yah-Yeplah Dolo-Barbu

Maurer Theses and Dissertations

No abstract provided.